Publications

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VCAT update: Tribunal distinguishes key decision and extends jurisdiction

Aquadonis Pty Ltd v Kingston CC (Red Dot) [2018] VCAT 1407 The Victorian Civil and Administrative Tribunal (‘VCAT’) recently decided it may have jurisdiction to determine an application under section 79 of the Planning and Environment Act 1987 in circumstances where a Cultural Heritage Management Plan (CHMP) is required but has not yet been approved. … Read more


Liability under the ASIC Act for unconscionable conduct

The New South Wales Court of Appeal has recently delivered an important judgment confirming that unconscionability will not be found lightly when allegations of unconscionable conduct are made against banks. Mastronardo & Anor v Commonwealth Bank of Australia Ltd & Ors [2018] NSWCA 136 explores the liability of banks for unconscionable conduct under the predecessor … Read more


Casual uncertainty: Federal Court decision states that casual employees may be entitled to annual leave

A recent decision of the Full Federal Court has emphasised to employers that they should be cognisant about the way that they engage “casual” employees in order to shield themselves from being liable in circumstances where a casual employee may claim that they should receive the annual leave entitlement under the National Employment Standards (Fair … Read more


Reminder about new ASX voting restrictions

In December 2017, ASX amended the voting exclusion requirements under ASX Listing Rule 14.11 and expanded the definition of ‘associate’ in ASX Listing Rule 19.12. Almost 90% of ASX listed entities are currently preparing for their AGMs and should be aware of these amendments when preparing their notice of annual general meeting. This is the … Read more


CSF legislation: Proprietary companies join the crowd

On 12 September 2018, new legislation was passed expanding Australia’s equity crowd-sourced funding (CSF) regime. CSF involves companies sourcing small amounts of capital from a large number of investors, generally using online platforms and appealing to non-professional investors. The new rules, which will come into effect 28 days after the legislation receives Royal Assent, extend … Read more


Brisbane commercial e’newsletter – September 2018

Welcome to HWL Ebsworth’s Commercial e-Newsletter for Queensland. We trust that you will find the information in this edition useful, timely and practical. HWL Ebsworth’s Commercial group offers a diverse range of expertise including in Mergers & Acquisitions, Capital Markets, Corporate Governance, Commercial Contracting, Taxation, Energy & Resources, Intellectual Property, Information & Technology and Franchising, … Read more


Do you own your trade marks?

The Full Federal Court has recently confirmed that trade marks applied for in the name of the wrong entity or individual will be invalid and open to cancellation. Ownership issues often arise when: A licensee files an application for a licensor’s mark; The wrong entity within a corporate group is named as the applicant; or … Read more


Why should you consider estate planning?

What is estate planning? Often, an effective estate plan does not end with a Will. It should adopt strategies to ensure that your wealth is protected during your lifetime, as well as enable the effective transfer of your wealth to your beneficiaries, without causing unnecessary stress and expense. Estate planning involves identifying your goals and … Read more


Outsourcing – An easy way to comply with the Notifiable Data Breach scheme?

The Privacy Act 1988 (Privacy Act) has always required organisations which are bound by the Privacy Act (‘APP Entities’) to take reasonable steps to keep personal information (Personal Information) secure. However, the newly introduced Notifiable Data Breaches (NDB) scheme has added a further obligation for APP Entities to notify the Office of the Australian Information … Read more


Key IP and technology issues for Building and Construction (B&C) industry

The continuing introduction of new technologies into the B&C industry has brought with it a number of vital IP and regulatory considerations. It is important to understand these developments as they arise in the industry, in order to maintain a competitive advantage and avoid potential legal disputes. Are you compliant with the new technology regulations? … Read more


Are you sitting on circumstances that should be notified to your insurer?

In all likelihood, you devote a substantial (and alarming) amount of money each year to insurance. Knowing when and how to notify claims and circumstances to an insurer is imperative to take full advantage of your cover and protect your business against a wide range of risks. Importance of notifying under claims made policies Policies … Read more


Proposed Aboriginal cultural heritage Bill

The current system Currently the protection and management of Aboriginal cultural heritage in New South Wales occurs under Part 6 of the National Parks and Wildlife Act 1974 (NPW Act). The following are some of the limitations of the current regime: The absence of formalised local arrangements for coordinating cultural knowledge. This often creates uncertainty … Read more


Seaworthiness, General Average and “Actionable Fault”

In a recent case involving General Average and the York-Antwerp Rules 1994 (Mount Isa Mines Ltd v The Ship “Thor Commander” [2018] FCA 1326), the Federal Court of Australia found that: The owner of the ship Thor Commander had failed to exercise due diligence before and at the beginning of the voyage to make the … Read more


Shadow Assistant Treasurer announces automotive Dealer Code

The Shadow Assistant Treasurer, Dr Andrew Leigh MP, today announced at the AADA National Dealer Convention in the Gold Coast that, if voted into office at the next Federal election, a Labor Government will implement an industry-specific Code for the new retail franchised automotive industry. Dr Leigh said that the new ‘Dealer Code’ will ‘drive … Read more


Legislative update – (even more) new ways to make development harder

On 21 August 2018, the Victorian Government introduced the Sale of Land Amendment Bill 2018 in an effort to provide greater protection to Purchasers, while creating greater restrictions and obligations on Vendors of off-the-plan and terms contracts and options to purchase. Changes to the Vendor’s right to rescind under sunset clauses If passed, the Bill … Read more


Hunter Quarries Pty Ltd v Alexandra Mexon as Administrator for the Estate of the Late Ryan Messenger [2018] NSWCA 178

Bright lines, chimeras and permanent impairment – The NSW Court of Appeal finds impairment arising as a result of an injury does not give rise to an entitlement to permanent impairment compensation under section 66 of the Workers Compensation Act where the injury is so serious that death will inevitably follow within a few minutes. … Read more


Amendments to Australia’s IP legislation approved

Further to our July alert regarding the status of the Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Bill 2018 (Cth) (Bill), the Bill passed the Senate on 16 August 2018 and received Royal Assent on 24 August 2018, and is now an Act. The majority of the Act commenced on … Read more


Further Delay to Commencement of Part 6 EP&A ACT

On 1 March 2018, the new look Environmental Planning and Assessment Act 1979 (Act) came into force. However, Part 6 – Building and Subdivision Certification (which replaced the former Part 4A Division 1) was not due to commence operation until 1 September 2018. On 17 August 2018, the Department of Planning and Environment announced that … Read more


Are you eligible for the primary production exemption from land tax?

Are you paying land tax on vacant land? If you conduct primary production activities on land in Queensland, you may be eligible for the primary production exemption from land tax. If you own vacant land, or land earmarked for future development, we can assist you. Who is this article relevant to? Property developers; Landholders; and … Read more


Consumer law penalties increase dramatically

The Treasury Laws Amendment (2018 Measures No. 3) Bill 2018 was passed in Federal Parliament on 23 August 2018, amending the Competition and Consumer Act 2010 to align the maximum penalties under the Australian Consumer Law (ACL) with the maximum penalties under the competition provisions of the Competition and Consumer Act. The Bill increases the … Read more


Trends in building upgrade finance

The Western Australian property industry is urging the State government to make changes to the Local Government Act 1995 (WA) that would enable financiers to enter into environmental upgrade agreements with commercial building owners and local councils. If introduced, these changes will help cut carbon emissions and provide a solution to the growing number of … Read more


Queensland’s combustible cladding reforms continue with the introduction of a new Regulation imposing audit onus on private owners

In June 2017, in response to the Lacrosse building fire in Melbourne and similar incidents abroad, the Queensland Government established the Non-Conforming Building Products Audit Taskforce to minimise and manage the risk of combustible cladding used in the construction of high-risk buildings. The Taskforce audited all publicly-owed buildings and is currently assessing the 71 buildings … Read more


Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017

The Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 is currently before the Senate and aims to strengthen and consolidate whistleblower protections in the corporate and financial sector. Key Features of the Bill The Bill aims to make the following key amendments to the current whistleblowing regime: Expanding the types of disclosures that will be … Read more


Developer, solicitor and buyer beware

Developers giving rebates or incentives to property buyers within a development is a common practice to secure sales. Historically developers and their agents have structured the giving of buyers’ rebates and discounts in ways that protect the asset value of their remaining stock, which is of benefit to other current owners and future buyers in … Read more


Teacher reinstated after flawed student allergy dismissal

The Fair Work Commission (FWC) has reinstated a teacher at the Hills Christian Community School (Hills School), after finding that she was unfairly dismissed for providing a student with known food allergies with a chocolate bar during a class birthday celebration. The decision highlights the need for education sector employers to clearly communicate student allergy … Read more


The power of permits

Both the Supreme Court of Victoria and the Victorian Civil and Administrative Tribunal (VCAT) have recently highlighted the power of a planning permit in two important decisions to the planning law regime. Planning Permit v Owners Corporation Rules: The Supreme Court Decision – Elwick 9 v Freeman [2018] VSC 234 Factual background An occupant and … Read more


New Labour Hire Laws in South Australia

The Labour Hire Licensing Act 2017 (SA) (Act) commenced in South Australia on 1 March 2018. The Act creates a mandatory licensing scheme with harsh penalties (including jail time) for non-compliance. The scope of the Act is extremely broad and will affect many businesses across South Australia which have not traditionally been considered to provide … Read more


New employment related thresholds

A number of employment related financial thresholds are indexed annually each 1 July. Below is a summary of some important changes effective 1 July 2018. High income threshold: Why is the high income threshold important? The high income threshold affects how modern awards apply to employees. Further and importantly, employees who earn more than the … Read more


National Health Law Bulletin

We are delighted to welcome you to the HWL Ebsworth Health Law Bulletin. The health law practice of HWL Ebsworth is one of the premier legal service providers to the Australian health industry, dedicated to assisting clients with all aspects of their legal needs. Within the national practice group we have a team of partners and … Read more


Gone phishing: cyber intrusions, email scams and notifiable data breaches

Malicious cyber intrusions involving phishing and compromised or stolen credentials, are leading the charge when it comes to the type of incidents being notified to the Office of the Australian Information Commissioner (OAIC) under the Notifiable Data Breaches Scheme (NDB Scheme). Email scams and related cyber intrusions have been an increasing problem for Australian businesses for … Read more


9 key takeaways from the ACCC’s second successful court action under the B2B UCT regime

In September 2017, the Australian Competition and Consumer Commission (ACCC) announced that it had instituted proceedings in the Federal Court against office services provider Servcorp Ltd and two of its subsidiaries (Servcorp), alleging that certain terms in Servcorp’s standard form, small business contracts were unfair under the unfair contract terms regime. The ACCC’s action centred … Read more


Legal Issues Arising from Use of Open Source Software Components

What is open source software The term “open source” refers to material that people are able to modify, access and share freely because its components/design/underlying elements are publicly accessible. Open source software (OSS) is software that has its source code publicly released under the terms of a copyright licence that allow for the general use, … Read more


Rash employee exits: a genuine departure or mistaken resignation?

Where an employee freely and willingly resigns from a job, the unfair dismissal provisions of the Fair Work Act 2009 (Cth) will not be available to them. But what happens when the resignation is not a genuine departure, and rather, is a termination at the initiative of the employer? The circumstances surrounding an employee’s decision … Read more


NSW Retirement Villages – Government commits to reform

In June 2018 the NSW Government responded to the Inquiry into the NSW Retirement Village Sector by Kathryn Greiner (Greiner Report) by supporting the recommendations for reform in the Report. The following key areas for improvement of the retirement village sector were raised in the Greiner Report: Increased transparency of exit fees and contracts; Greater … Read more


Defamation extends to Facebook Comments

The recent District Court of South Australia decision in Johnston v Aldridge (No 2) [2018] SADC 72 (Johnston v Aldridge) has extended responsibility for defamatory comments on Facebook. The ruling found that former political candidate Mark Aldridge (Defendant) was responsible not only for the defamatory contents of his own Facebook posts but also for the … Read more


24th Edition – National Insolvency & Reconstruction Quarterly Review

Welcome to the latest edition of our National Insolvency & Reconstruction Quarterly Review for the period 1 April 2018 to 30 June 2018. A significant amount of activity has occurred over the last quarter and we outline a few of those matters in this edition. In particular, our team: Provides a detailed review of the … Read more


Sydney Real Estate & Projects – Another 20 years of Quay

HWL Ebsworth’s Sydney Property team acted for the Fink Group in successfully renegotiating the new long-term lease arrangements for Quay Restaurant. Martin Downing and Rachel Gregson negotiated the lease, and agreement for lease, with Sydney Ports for the $4 million up-grade of Quay. The negotiation of the new 20 year lease proved challenging and required … Read more


VACC launches ‘Better Business. Better Victoria.’ policy platform

On Wednesday, 25 July 2018, the Victorian Automobile Chamber of Commerce (VACC) launched its policy recommendations for the automotive industry, named ‘Better Business. Better Victoria.’ In light of the upcoming Victorian State election, the policy launch is aimed at providing Government with a range of initiatives in order to facilitate a close working relationship with … Read more


More punishment for marine polluters in Australia

A new financial year brings with it an increase in the fines for those polluting Australian waters. Ship owners, charterers, masters, operators and their insurers should be aware of potential liabilities for fines in Australia on top of pollution clean up and damage claims. As at 1 July 2018, a majority of States (and the Northern … Read more


Intellectual property, technology and media newsletter – July 2018

Welcome to our Newsletter, bringing you the latest in Intellectual Property, Technology and Media Law news. IP legislation amendments one step closer The Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Bill 2018 (Cth), presently before the Senate, proposes to introduce changes to intellectual property legislation. The Bill includes changes to the … Read more


Modern slavery in the world of franchising

In recent years, we have seen the emergence of the concept of “modern slavery”. However two recent legal developments mean that modern slavery is an issue that can no longer be ignored by many businesses involved in the supply of goods and services in Australia. In this article, we look at those legal developments and … Read more


Bauer Media Pty Ltd & Anor v Rebel Wilson

Case Note Bauer Media Pty Ltd and Bauer Media Australia Pty Ltd v Rebel Melanie Elizabeth Wilson [No.2] [2018] VSCA 154. Background: Following publication of a number of articles in various weekly magazines Australian actress, Rebel Wilson, commenced defamation proceedings against Bauer Media Pty Ltd and Bauer Media Australia Pty Ltd (Bauer). On 13 September … Read more


Geoffrey Rush v Nationwide News Pty Ltd & Jonathon Moran

Introduction: Two recent decisions by Justice Wigney emphasize the precision required in pleading defences to defamation proceedings.  This case note summarises two interlocutory decisions: Rush v Nationwide News Pty Ltd [2018] FCA 357 (The First Rush Decision); and Rush v Nationwide News Pty Ltd (No. 2) [2018] FCA 550 (The Second Rush Decision). Background On … Read more


Recent developments in dealing with your digital estate after incapacity or death

‘Digital Estate’: We live in a digital age. We access, store, transfer and receive information and valuable documents electronically. During our life our attorneys, and after our death the Executors of our will, need to consider and access our ‘digital assets’ in the course of administering our affairs or a deceased estate respectively. In this … Read more


Jumping the gun – ACCC sues for implementing a merger too soon

The Australian Competition and Consumer Commission (ACCC) has instituted proceedings against Cryosite Limited (Cryosite) for alleged cartel conduct in relation to an asset sale agreement with competitor Cell Care Australia Pty Ltd (Cell Care).1 Prior to entering the agreement, Cryosite and Cell Care were the only private suppliers of storage services for umbilical cord blood … Read more


ACCC successfully enforces the B2B Unfair Contract Terms law against office services provider, Servcorp

In April of this year, the authors of this article published an article discussing how automatic renewal clauses are increasingly vulnerable under the Australian Consumer Law and the recent actions the ACCC had taken against businesses which had automatic renewal clauses in their standard form contracts. To recap, an automatic renewal clause provides for a … Read more


The scope of an employer’s duty of care: the privacy tightrope

The District Court of NSW has denied a claim by a former Police Officer seeking work injury damages for psychological injury arising from her exposure to traumatic incidents over the course of her service with the NSW Police Force (NSWPF). In determining that NSWPF had not breached its duty of care to the plaintiff, the … Read more


Limitations of liability clauses trumped by the Australian Consumer Law

The recent Victorian case of Brighton Australia Pty Ltd v Multiplex Constructions Pty Ltd [2018] VSC 246 (Brighton Decision) has cast further doubt on the definitive answer to an important legal question: Do limitations of liability clauses apply to claims made under section 18 of the Australian Consumer Law (ACL)? In other words, can a … Read more